Order 2011-10-13

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C.

Issued by the Department of Transportation

On the Nineteenth day of October, 2011

Petition for Rulemaking and Complaint of

 Donald L. Pevsner Served October 19, 2011

 

Violations of 49 U.S.C. § 41712 OST 2011-0078

Petition for Rulemaking and Request 

for Sanctions against Delta Air Lines, Inc., of

 Donald L. Pevsner Served October 19, 2011

OST 2011-0079

ORDER DISMISSING PETITIONS AND COMPLAINT

On April 15, 2011, Donald L. Pevsner (“Petitioner”) filed a document entitled a Petition 

for Rulemaking and an Unfair Practice Complaint relating to practices of Delta Air Lines 

and, by inference, other carriers (Docket OST 2011-0078). Mr. Pevsner also filed on the 

same date a second document entitled Petition for Rulemaking and Request for Sanctions 

against Delta Air Lines, Inc. (Docket OST 2011-0079). 

Docket OST 2011-0078

Mr. Pevsner alleges in his petition and complaint that, as a result of air carrier alliances, 

carriers limit routings offered to consumers on round-trip itineraries to carriers that are 

members of their respective alliances. In order to get the advantages of lower round-trip 

pricing, Petitioner asserts, consumers often have to accept circuitous routings on flights 
2

operated by code-share partners within a single alliance.1

 In order to purchase the more 

convenient routings involving non-stop flights involving carriers of different alliances, 

Mr. Pevsner asserts that a consumer must purchase two full-fare one way tickets. Mr. 

Pevsner alleges that this situation should be considered an unfair and deceptive trade 

practice in violation of 49 U.S.C. 41712 and he urges the Department to require carriers 

to allow consumers to construct “open-jaw” itineraries, as if they were the lower cost 

roundtrip, regardless of each carrier’s alliance affiliation. Similarly, in a strictly domestic 

context, Mr. Pevsner urges the Department to require carriers to permit consumers to

combine outbound and return flights operated by different carriers, at the option of the 

consumer, while still receiving generally available round-trip excursion fares.

In support of his requests, Mr. Pevsner cites 14 CFR 302.16, relating to initiation of 

rulemaking proceedings, and 14 CFR 302.502, relating to initiation of investigations 

related to rates and charges in foreign air transportation. Despite this cited authority, Mr. 

Pevsner does not explicitly request a rulemaking proceeding, rather, he appears to 

advocate that the Department find the practice of “forcing” consumers to purchase 

itineraries on member carriers of a single alliance in order to obtain the most convenient 

routing and lowest fare to violate section 41712, in which case, Mr. Pevsner asserts, the 

Department is obligated to “order” the carriers involved to cease the practice in question.

Docket 2011-0079

In his second petition, Mr. Pevsner asks the Department to initiate a rulemaking that 

would explicitly require carriers, in instances of flights cancelled for reasons related to 

“force majeure,” to “arrange for [alternative air] transportation . . . if such action will 

result in such passenger’s trip being completed earlier than the ticketed trip.”

In cancellations not involving “force majeure,” Mr. Pevsner urges that the Department 

adopt a rule that would require a carrier to arrange for alternative air transportation on 

another carrier if available. Mr. Pevsner’s suggestion apparently stems from an 

experience in which his flight, operated by Delta, was cancelled for air traffic control 

reasons and the carrier did not provide him with substitute transportation acceptable to 

him. Delta’s relevant policy, stated in its rule 240(c) of its contract of carriage,2 provides 

that “if acceptable to the passenger, Delta may arrange for the passenger to travel on 

another carrier or via ground transportation.” (emphasis added) 

 

1 In his petition and compliant, Mr. Pevsner cites as an example an itinerary from Chicago 

to Rome, with an open-jaw between Rome and Zurich, and a return to Chicago from Zurich. He 

states that the only non-stop between Chicago and Rome is operated by Alitalia and the only nonstop between Zurich and Chicago is operated by Swiss International Airlines. Petitioner points 

out that, because the two carriers are not members of the same carrier alliance, to obtain the 

lowest round-trip price (which is available only on allied carriers) a consumer would have to 

accept flights that were not nonstops in at least one direction.

2 Rule 240(c) appears in the Legal Notices section of the Delta website as a Domestic 

Rules Tariff. 
3

In the second portion of the pleading, Mr. Pevsner bases his request for the imposition of 

sanctions on Delta on his experience on an April 12, 2011, flight for which he held a 

ticket that was scheduled to operate from Charlotte to Buffalo, by way of Atlanta. 

Delays in Atlanta caused the first flight to be held at Charlotte. At some point, when it 

was clear that he would not make his connection at Atlanta, Petitioner deplaned and 

asked Delta to re-route him, on another carrier if necessary. According to the Petitioner, 

Delta was unwilling to do so although he claims that alternative flights were available. In 

view of this incident, the petitioner asserts that the Department should impose an 

unspecified civil penalty on the carrier.

Further Pleadings

On April 28, 2011, Delta filed an answer to Mr. Pevsner’s petition in Docket 2011-0079. 

In its answer, Delta admitted the basic facts about Mr. Pevsner’s flight, including the fact 

that Petitioner’s flight was delayed by an air traffic control-imposed ground-stop, but 

denied that he was treated in an unreasonable manner. To the contrary, according to 

Delta, it was prepared to follow its contract of carriage in transporting Mr. Pevsner to 

Buffalo, which would have entailed putting him on the next available Delta flight on 

which space was available, but Mr. Pevsner insisted on being transported to Buffalo on 

another carrier’s non-stop flight. Delta points out that Mr. Pevsner elected initially to buy 

a ticket on a Delta Charlotte-Atlanta-Buffalo flight at a price of about $94, instead of 

traveling on another carrier’s Charlotte-Buffalo non-stop flight at a cost of more than 

$400, and that his demand to be rerouted on the other carrier was unreasonable. 

According to Delta, while it does have a ticketing agreement with the other carrier, Delta 

would have had to pay the other carrier about $134 to re-accommodate Mr. Pevsner, or 

more than 40 percent more than Mr. Pevsner had paid Delta for his original flight. The 

carrier asserts that requiring such mandatory re-routing at a passenger’s convenience 

would have a chilling effect on carriers and deter low fare competitive pricing options, 

which the carrier points out generally benefit all passengers. 

Mr. Pevsner filed a rebuttal to this response, reiterating his contention that Delta’s 

employees gave him contradictory advice and demonstrated neither courtesy nor 

competence. In its surreply, Delta restates its argument that the delays in Charlotte were 

the result of weather delays and TSA requirements, and that the carrier did provide the 

petitioner with a full refund as its contract of carriage required.

Two comments were filed by members of the public in Docket 2011-0079 in support of 

Mr. Pevsner’s petition. Ms. Kathleen Gemmell states that when an airline’s flight is 

cancelled or delayed by more than one hour it should be obligated to rebook the passenger 

on any available seat on a flight operated by any other airline serving the passenger's 

destination city which would get the passenger to their destination sooner than the 

delayed flight's anticipated arrival. Ms. Gemmel urges that this requirement should apply 

even if the only available seat is in a higher fare category and should be provided at no 

cost to the passenger. 

Mr. Edward Perkins asserts that a mandatory and universal "Rule 240" would be a major 

benefit to consumers. An airline facing a delay or cancellation should, Mr. Perkins 
4

argues, be required to provide reasonable remedies to make the consumer whole, 

including, where necessary, mandatory transfer to another airline that is able to get that 

consumer to his or her final destination earlier. Mr. Pevsner argues this is a necessary 

remedy, which the Department should require to be applied across all domestic airlines, 

whether or not they have existing interline agreements.

Mr. Perkins also supports Mr. Pevsner’s suggestion, in Docket 2011-0078, that carriers 

ought to be required to offer routings on carriers outside their respective code-share 

alliances without any fare penalty. Before deregulation, Mr. Perkins states, such ticketing 

was standard, and he asserts that consumers should not be denied a useful travel option 

because of supposed consumer "benefits" or because major airlines have decided to 

coalesce into a few monopolistic alliances.

Conclusion

We have carefully considered the petition and the complaint in Docket 2011-0078, as 

well as the comments filed in that docket, and have decided to dismiss the petition and 

complaint. The Petitioner asks, in the face of the Department’s longstanding mandate to 

deregulate fares, and while suggesting no specifics, that carriers be required to allow 

passengers to cobble together their own itineraries that in some unspecified way would 

incorporate round-trip pricing discounts, without regard to a particular carrier’s fare 

structure or relationship with other carriers in the passenger’s preferred round-trip 

itinerary. Aside from the Petitioner’s failure to address the Department’s lack of 

authority to regulate domestic fares3, the petition, we conclude, suggests an impractical 

and unworkable mandate that would unduly interfere with the business discretion of 

carriers in establishing fares and reaching code-share or alliance agreements. 

We have also decided, after careful consideration of all comments, to dismiss the petition 

and request for sanctions in Docket 2011-0079. The Petitioner offers virtually no support 

for his request that the Department reverse its long-standing policy of permitting the 

marketplace to govern carrier decisions involving re-routing of passengers affected by 

flight irregularities caused by weather. To require carriers, as the petitioner urges, to 

provide re-routing arrangements on the carrier of the consumer’s choice regardless of the 

cost of that alternate transportation would, in the absence of a more compelling public 

interest showing, represent an unwarranted intrusion into the operational decisions of air 

carriers. Delta offered to reroute Petitioner and alternatively offered him a full refund of 

the ticket price, as required by its published contract of carriage and section 253.5 of the 

Department’s rules, 14 CFR 253.5. The Department imposes no further independent 

obligation on carriers in the case of cancelled flights. 

 

3

Under 49 U.S.C 41507 et seq., the Department has authority to ensure that joint fares in foreign 

air transportation are not unreasonable, and may suspend or adjust tariffs that fail to meet this 

criterion. Similar authority does not exist with respect to any fares charged in interstate air 

transportation.
5

ACCORDINGLY, I dismiss the third-party complaints and petitions for rulemaking4 in 

dockets OST 2011-0078 and OST 2011-0079.

This order is issued under authority assigned in 14 CFR 302.406(b) and shall be effective 

as the final action of the Department within 30 days after service.

By:

Samuel Podberesky

Assistant General Counsel for

Aviation Enforcement and Proceedings

An electronic version of this document is available on the World Wide Web at

http://dms.dot.gov//reports/reports_aviation.asp

 

4 The Department’s Assistant Secretary for Aviation and International Affairs has 

delegated her authority to dismiss these rulemaking petitions to the Assistant General Counsel 

for Aviation Enforcement and Proceedings.